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State v. Mcelderry

9/8/1997

Submitted on Briefs August 7, 1997.


On October 16, 1996, the State of Montana charged Barbara McElderry, by complaint filed in the Lake County Justice Court, with driving under the influence of alcohol, fifth offense, a felony, in violation of § 61-8-401(1)(a), MCA, and with reckless driving and driving while her license was suspended or revoked, in violation of §§ 61-8-301(1)(b) and 61-5-212, MCA, respectively. On October 25, 1996, the State filed a motion and affidavit for leave to file an information in District Court. That motion was granted on October 28, 1996, and the information was filed that same day. The information, however, was later dismissed for the State's failure to file an information within a reasonable time from the date of the defendant's imprisonment. The State appeals from the District Court's order dismissing the information. We vacate the District Court's judgment and remand this case for further consideration consistent with this opinion.


The issues on appeal are:


1. Did the District Court err when it calculated the time period referred to in § 46-10-105, MCA, from the time of the defendant's arrest, rather than from her initial appearance?


2. Did the District Court err when it concluded that in State v. Higley (1980), 190 Mont. 412, 621 P.2d 1043, this Court adopted a ten-day time limitation for charging a person in custody, consistent with Rule 5(c) of the Federal Rules of Criminal Procedure?


3. Did the District Court err when it found the period of time which elapsed prior to the filing of the information unreasonable in this case?


FACTUAL BACKGROUND


On October 14, 1996, Barbara McElderry was arrested in Lake County for allegedly committing the offenses of driving under the influence of alcohol, reckless driving, and driving while her license was suspended. In its complaint and affidavit, the State alleged that the arresting officer noticed McElderry's vehicle weaving in her lane and speeding along highway 93 near Pablo, Montana. Following her detention and refusal to perform any of the standard field sobriety tests, McElderry was placed into custody in the Lake County jail.


Two days later, on October 16, 1996, McElderry made her initial appearance in the Lake County Justice Court and the State charged her by filing its complaint. The charges brought against McElderry were driving under the influence of alcohol, her fifth offense, a felony pursuant to § 61-8-401(1)(a), MCA, and the misdemeanors of reckless driving in violation of § 61-8-301(1)(b), MCA, and driving while her license was suspended or revoked in violation of § 61-5-212, MCA.


On Friday, October 25, 1996, the State filed a motion for leave to file an information in the District Court for the Twentieth Judicial District in Lake County. The District Court granted leave to file the information on Monday, October 28, 1996. On that same day, fourteen days after McElderry's arrest and imprisonment, and twelve days after her initial appearance in the Justice Court, the State filed its information.


On October 29, 1996, McElderry filed a motion to dismiss the charges based on her contention that the reasonable time requirement in § 46-10-105, MCA, as interpreted by this Court in Higley, 190 Mont. 412, 621 P.2d 1043, requires a determination of probable cause within ten days following a defendant's initial appearance. The State responded that this Court, in Higley, found that a ten-day delay prior to a determination of probable cause is not unreasonable, but that ten days is not considered an outer limit for what is reasonable. The District Court granted McElderry's motion and dismi

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